Agencies propose changes to FOIA regulations

By Taylor Perse

The EPA in June proposed updated FOIA regulations that would give the agency’s administrator and other political appointees the final say in granting requests and the power to redact or withhold records if it is deemed unresponsive to what the request specifically asked for. The EPA also chose to forgo a comment period on the proposed regulations, which will go into effect July 25, 2019. A comment period traditionally allows for public comment or scrutiny of the proposal before it takes effect.

RCFP photo by Gregg Leslie

In response, the Reporters Committee for Freedom of the Press wrote a formal letter on behalf of 38 media organizations alleging that parts of the new regulations violate FOIA law and urging the EPA to open a comment period.

Adam Marshall, right, a staff attorney for the Reporters Committee, said the only time new FOIA regulations are not open for public comment is in an emergency. Marshall said it’s unusual not to have a comment period in this case because the proposed changes are substantial and it’s not an emergency.

However, it’s not the first time a government agency has tried in recent years to alter or add to regulations. The effect has been to make it increasingly difficult to acquire records. Marshall said that the efforts are not unique to any particular administration.

“No administration has been good when it comes to FOIA,” he said. “When you look at numbers in terms of requests that get denied or delayed, it’s gotten worse every year.”

In December, between two holidays and a government shutdown, the Department of the Interior attempted to pass new regulations limiting the number of records requests it processed each month. The agency said requests would no longer be accepted through email, instead providing an online portal for requests. The regulations would also extend the discretion the agency can use when it comes to approving records, allowing it to deny any request that requires an “unreasonably burdensome search.” Unlike the EPA, the Department of the Interior allowed for a public comment period. The Reporters Committee submitted a response advising changes to the proposed regulations, which have still not been passed.

Some agencies say that one reason for changes is the growing volume of requests, which limits the number of records returned and the timeliness of receiving records. CBS News reported last year that the government had censored or withheld data more frequently in 2017 than in the last decade.

Despite an undeniable increase in requests, Marshall said government agencies should be making records more accessible rather than adding restrictions.

“I don’t think any journalist views FOIA as an effective tool to get information in a timely way anymore,” Marshall said. “That has negative consequences for the public.”

(RCFP photo by Gregg Leslie)